COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Annunziata 

Argued at Alexandria, Virginia 

RONALD D. CARVER 

v. Record No. 2646-94-4 MEMORANDUM OPINION*

 BY JUDGE JOSEPH E. BAKER 

COMMONWEALTH OF VIRGINIA FEBRUARY 6, 1996 

FROM THE CIRCUIT COURT OF FREDERICK COUNTY 

James L. Berry, Judge 

 John C. Morgan, Jr., for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Ronald D. Carver (appellant) contends the trial court erred 

when it refused to grant his motion for a continuance based upon 

the failure of a witness to appear at trial. Sufficiency of the 

evidence to support his jury trial conviction for operating a 

motor vehicle while under the influence of alcohol is not 

contested. 

 The record discloses that appellant was arrested on February 

19, 1994. On June 14, 1994, he was found guilty by a general 

district court judge. When appellant appealed that decision to 

the Circuit Court of Frederick County, the matter was first set 

to be tried by a jury in that court on August 17, 1994. On 

August 12, 1994, less than one week before that trial date, 

appellant's counsel, citing differences between appellant and 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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counsel, moved the trial court to permit him to withdraw from the 

case. On August 15, 1994, the trial court granted the motion and 

directed appellant to obtain new counsel prior to September 15, 

1994, continuing the trial by jury until October 19, 1994. 

 On October 19, 1994, appellant appeared but without new 

counsel. Appellant again moved for a continuance and, over the 

Commonwealth's objection, the court granted appellant's motion 

and ordered the matter to be again postponed for trial by jury to 

December 21, 1994. That order further directed appellant to be 

present with his newly retained counsel at 9:00 a.m. on November 

18, 1994. On that date, appellant appeared without counsel but 

with a letter from Attorney John Morgan explaining he could not 

be present on that day. By order dated November 28, 1994, the 

trial court re-affirmed that the matter would be heard by a jury 

on December 21, 1994. 

 An agreed statement of facts notes that, prior to the 

selection of a jury, appellant again moved for a continuance on 

the ground that an "essential witness" was not present in court. 

 It further was agreed that although a subpoena was issued it was 

not served. The trial court continued the matter for three 

hours, to twelve noon, to give appellant time to locate the 

witness, but at twelve noon, the witness had not been produced. 

At appellant's request, the trial court advised the jury that 

appellant had moved for a continuance to permit him to secure the 

witness' attendance and that the court had denied the motion. No 
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proffer was made to the trial court as to the expected content of 

Wilson's testimony. 

 The jury returned the following verdict: 

We the jury, on the issues joined, find the 

accused, Ronald Dennis Carver, guilty of 

operating a motor vehicle while under the 

influence of alcohol, a third offense within 

10 years, as charged in CR94-158 and fix his 

punishment at 1 year confinement and $1,000 

fine. 

 "[A] motion for a continuance in order to obtain the 

presence of a missing witness is addressed to the sound 

discretion of the trial court whose decision will not be reversed 

unless the record affirmatively shows an abuse of such 

discretion." Cherricks v. Commonwealth, 11 Va. App. 96, 99, 396 

S.E.2d 397, 399 (1990) (citations omitted). "The burden is on 

the party seeking a continuance to show that it is likely that 

the witness would be present at a later date." Chichester v. 

Commonwealth, 248 Va. 311, 322, 448 S.E.2d 638, 646 (1994). 

 The trial court continued the trial for three hours to allow 

appellant to locate the missing witness. The statement of facts 

does not indicate that appellant exercised due diligence in 

procuring the witness, nor does it explain why the subpoena was 

not returned and whether the missing witness would be present at 

a later trial. 

 Viewing the record in its totality, we cannot say that the 

trial court abused its discretion. Accordingly, the judgment of 

the trial court is affirmed. 

 Affirmed.